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About Changing the Law to Fill Kennedy's Seat Right Away

By   Follow Me on Twitter     Message Andrew Bard Schmookler     Permalink
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As most of us have probably heard by now, the law in Massachusetts
regarding filling a seat suddenly vacated in the U.S. Senate was
changed by the Democrat-controlled state legislature in 2004 in order
to prevent Republican then-governor Mitt Romney from appointing a
Republican to fill the seat if John Kerry won election to the

According to the new law, the seat stays empty for five or six months
until a special election can be held, and then the people of the state
fill it with the person whom they choose with their votes.

Kerry's seat never went vacant, of course, but that of Massachusett's other Democratic Senator, Ted Kennedy, now has.

It has become known in the past week that in early July, foreseeing his
coming death, Ted Kennedy wrote to request that the law be changed back
so that the Democratic Governor, Duvall Patrick, could appoint an
interim replacement to hold that seat between the time it became vacant
and the time that a special election could be held. He further
stipulated that the interim filler of that seat should explicitly
renounce any intention of running for that seat in the special election.

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Kennedy spoke about the importance of Massachusetts having "two voices"
in the Senate, but clearly the issue is not so much the local one as
the national calculus, with the Democrats engaged in such important
legistlative undertakings, with the Republicans making unprecedentedly
automatic use of the filibuster to block the Democrats from achieving
their goals, and with the 60 votes for cloture so touch and go.

So the question is not only WILL the law be changed back, but SHOULD it?

Purely in terms of political results, I like BOTH changes, the one in
2004 and the one proposed for now, 2009. But in terms of
political methods, and the long-term implications of the party in power
simply changing the rules of the game whenever they're in a position to
gain advantage thereby, I have serious qualms.

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It really is not OK for power to simply bend the law, rather than for the law to constrain power.

However, I have a proposal for how to achieve the desirable political
results without creating such a dangerous political precedent.
And here it is.

The Democrats can put it to the Republicans: conceding the problematic
nature of changing the rules for partisan advantage, they can ask the

The goal here, of course, is health care reform. Not only was
such reform instituted in Massachusetts under a Republican governor,
but it was also declared by Ted Kennedy to be "the cause of my

Invoking Ted Kennedy should have a powerful political impact at this moment.

This will put the Republicans in the Massachusetts legislature between two sets of pressures.

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On the one side will be the national Republican Party, which of course
wants the seat empty in order to decrease the forces behind Obama, whom
they are doing everything they can to bring down.

But on the other side will be the people of Massachusetts, who went
overwhelmingly for Obama, who favor health care reform, and who,
especially, are in mourning for a great leader (and last of the Kennedy
brothers) whose dying wish and fondest cause would be dealt a blow by a
refusal to change the law.

As far as I can see, the Republican legislators of Massachusetts have
no great need to appease their national party. That party does
them no favors, and is not in a position to do them any great
injury. The people of Massachusetts, however, decide on a regular
basis whether to keep them in their jobs.

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Andy Schmookler, an award-winning author, political commentator, radio talk-show host, and teacher, was the Democratic nominee for Congress from Virginia's 6th District. His new book -- written to have an impact on the central political battle of our time -- is (more...)

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